R v Janima  NTSC 35
PARTIES: The Queen
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: 21019744
DELIVERED: 6 MARCH 2012
HEARING DATES: 5 MARCH 2012
JUDGMENT OF: KELLY J
CRIMINAL LAW – Evidence – cross-examination – requirement to tender a statement cross-examined upon beyond those parts used by the witness to refresh memory – no requirement that tender be sought before the close of cross-examination – complainant cross-examined about a statement made by her to police – defence required to tender the complainant’s statement
Evidence Act (NT), s 19 and s 20
Evidence Act (Vic), s 36
Alexander v Manley  WASC 140; 29 WAR 194; R v Foggo, ex parte AG (1989) 2 Qd R 49; Gregory v Tavernor (1833) 6 Car & P 280; 172 ER 1241; R v Harrison  VR 72; Senat v Senat  P 172; 2 All ER 505; 2 WLR 981; R v McGregor  1 Qd R 256; R v Vella  VSCA 248; 14 VR 592; 167 A Crim R 66; applied.
Plaintiff: S Robson
Defendant: J Tippett QC
Plaintiff: Office of Director of Public Prosecutions
Defendant: John McBride
Judgment category classification: B
Judgment ID Number: KEL12013
Number of pages: 6
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
AT ALICE SPRINGS
R v Janima  NTSC 35
CORAM: KELLY J
REASONS FOR DECISION
(Delivered 6 March 2012)
 On 3 June and 15 July 2011 a special hearing was held in this matter at which the evidence of the complainant was taken and recorded for use at the trial. During cross examination of the complainant, defence counsel asked her about a statement she had made to police. The complainant admitted that she had told her story to police; that the police officer had written down what the complainant had told her; and that after the police officer had written it down, the complainant had signed it to say it was true. Counsel then cross examined her about what she had told police by reference to what was in the statement, and in particular:
(a) that she had not told police that the accused had punched her three times on the thigh as she had said in her evidence;
(b) that she had told police that the accused had put his penis in her mouth but had not mentioned that in her evidence;
(c) that she had told police that another person who was present at the time had said, “I’m next,” and, “If you yell out I’m going to punch you in the face.”
 At the end of cross examination of the complainant, the Crown prosecutor stated that he would require defence counsel to tender the statement. Defence counsel objected on the ground that the Crown prosecutor was too late; the requirement to tender should have been notified before cross examination was complete. I directed that written submissions on this disputed issue be filed and served well in advance of the trial. The Crown prosecutor filed and served written submissions within the time directed, referring to a number of authorities to the effect that it was not necessary for counsel to require the tender of the document being cross examined upon during the course of cross examination. Upon consideration of those authorities, the then defence counsel, quite properly in my view, conceded that there was no such requirement and that he intended to make no submissions in opposition to the requirement that he tender the statement.
 At the trial, senior counsel for the defence renewed his opposition to being required to tender the statement. He contended that there was no rule which would require him to tender the statement simply because it had been cross examined upon. He also contended that the provisions of s 19 and s 20 of the Evidence Act are to the contrary, but cited no authority for that proposition.
 I ruled that the defence would be required to tender the complainant’s statement and indicated that I would publish reasons at a later date. These are those reasons.
 The general and well established rule is that if counsel cross examines a witness on a statement beyond the areas of the statement which had been used to refresh the witness’s memory, counsel can be compelled to tender it at the option of the other counsel, subject to the trial judge’s discretion to exclude it on the grounds of fairness if, for example, its prejudicial effect outweighs its probative value.
 As contended by the prosecutor and appropriately conceded by counsel who appeared for the accused on the special hearing, there is no requirement that the tender be sought before the close of cross examination.
 Sections 19 and 20 of the Evidence Act provide as follow.
“19. Proof of contradictory statements of witness
If any witness, upon cross-examination as to a former statement made by him, relative to the subject-matter of the case before the Court, and inconsistent with his present testimony, does not distinctly admit that he made the statement, proof may be given that he did in fact make it; but, before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he has made the statement.
20. Cross-examination as to previous statements in writing
A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, (whether directly or by means of transcription from a record of the statements made by means of sound-recording apparatus or shorthand) relative to the subject-matter of the case before the Court, without the writing being shown to him, but, if it is intended to contradict the witness by the writing, his attention shall, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him:
Provided that the Court may, at any time during the trial, require the writing to be produced for its inspection and the Court may thereupon make such use of it, for the purposes of the trial, as it thinks fit.”
 I can see nothing in either of these sections to support the contention by senior counsel for the accused that either or both sections have abolished the common law rule of evidence relied upon by the prosecutor. A similar provision to s 20 was considered by the Victorian Court of Appeal in R v Vella. It was held that the trial judge had mistakenly applied s 36 of the Victorian Evidence Act (which is in almost identical terms to s 20 of the Northern Territory Evidence Act) when the prosecutor sought the tender of a document that had been cross examined upon by defence counsel. Bongiorno, AJA (with whom Buchanan, JA and Nettle, JA agreed) said of that provision:
“Section 36 of the Evidence Act 1958 is a provision relating to the use that can be made of a witness’s prior out-of-court statement by a cross-examiner particularly for the purpose of contradicting the witness by that statement and, by virtue of the proviso to the section, by the Court itself. Its purpose was to remove a number of inconvenient consequences of the former common law rule derived from The Queen’s Case. The exercise undertaken by the prosecutor in this case was not, in truth, concerned with s 36 at all. He was invoking the common law rule derived from Gregory v Tavernor referred to by the Full Court in R v Harrison and by Sir Jocelyn Simon in Senat v Senat.”
 Senior counsel for the accused further submitted that, if there were such a rule, I should nevertheless exercise my discretion to exclude the complainant’s statement to police on the grounds of fairness because its prejudicial effect outweighs its probative value. In my view, fairness does not require the statement to be excluded.
 The prejudicial effect asserted by defence counsel was that the jury are likely to reason that the statement made to police was contemporaneous with the relevant events and therefore likely to be reliable. This is not the kind of impermissible reasoning which would render the tender of the statement unfair. A document which is compulsorily tendered because counsel has cross examined on it outside those matters in it which have been used to refresh the witness’s memory may confirm some or all of the evidence of the witness being cross-examined. If so, the proper use of it is to bolster the witness’s credit in a permissible way. 
 As the prosecutor submitted in written submissions, fairness requires that the jury see the whole of the complainant’s police statement, as identified and cross examined on, rather than being informed only of select parts put in cross examination and relied upon to suggest that the complainant is a discreditable and unreliable witness because of inconsistencies between those selected parts and her evidence at trial. The jury should make this assessment in light of the whole of the document.
 Transcript of proceedings at the special hearing on 3 June and 15 July 2011 at T21, T22 and T24.
 Ibid at T25.
 Ibid at T42.
 Gregory v Tavernor (1833) 6 Car & P 280; 172 ER 1241; Senat v Senat  P 172; 2 All ER 505; 2 WLR 981; R v Harrison  VR 72; R v Vella  VSCA 248 at ; 14 VR 592; 167 A Crim R 66; R v McGregor  1 Qd R 256; R v Foggo, ex parte AG (1989) 2 Qd R 49.
 R v Vella (supra); R v Foggo, ex parte AG (supra); Alexander v Manley  WASCA 140; 29 WAR 194.
 R v Vella at . References have been omitted. These are the authorities referred to in footnote 5 above.
 R v Vella at .